Searching Case Laws & Precedent on Legal Query!
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Searching Case Laws & Precedent on Legal Query!
Scanned Judgements…!
The attachment must be made in accordance with the prescribed procedure, including compliance with sub-rules (1) and (4), to avoid the order being declared void ["M/S.ELSTONE TEA ESTATES LIMITED vs PIUS.C.MUNDADAN - Kerala"], ["Pulakala Venkanna vs Vankayala Gandhi - Telangana"].
Analysis and Conclusion:
References:- ["md. ferdous alam ....... petitioner- vs mr. in muk park and another ...... opposite parties - Supreme Court"]- ["Rajendran, S/o. Narayanan vs Reshny, W/o. Muralidharan - Kerala"]- ["Gurpreet Singh v. Abdul Gani Dar - Jammu and Kashmir"]- ["A. Pradeep VS Tmt. Binu Christeena - Madras"]- ["Pulakala Venkanna vs Vankayala Gandhi - Telangana"]- ["M/S.ELSTONE TEA ESTATES LIMITED vs PIUS.C.MUNDADAN - Kerala"]- ["Pulakala Venkanna vs Vankayala Gandhi - Telangana"]- ["T.Senthilvel vs K.Saminathan - Madras"]
In civil litigation, securing a plaintiff's potential decree is crucial, especially when there's a risk the defendant might dispose of assets. A common query from litigants is: Hi Can leave enhancement be attached under Order 38 Rule 5? This question delves into the attachment of earned leave encashment—often a retirement benefit—before judgment under the Code of Civil Procedure (CPC), 1908. While Order 38 Rule 5 empowers courts to attach property to prevent obstruction of decrees, its application to specific assets like leave enhancement requires strict adherence to legal safeguards. This post analyzes the legal framework, key case laws, and judicial principles to clarify when such attachments may or may not hold. Note: This is general information based on precedents and not specific legal advice; consult a qualified lawyer for your case.
Order 38 Rule 5 CPC is a drastic and extraordinary power designed to attach a defendant's property before judgment if the court is satisfied that the defendant intends to obstruct or delay execution of any decree by disposing of or removing property from jurisdiction Kulmohan Singh And Another VS Satinder Singh Bhasin And Another - 2022 0 Supreme(Del) 1501BEZWADA YOHANU VS KONANGI RADHA KRISHNA - 2018 0 Supreme(AP) 976. Courts emphasize that this power must be exercised sparingly and strictly, not mechanically or as leverage to secure debts Kulmohan Singh And Another VS Satinder Singh Bhasin And Another - 2022 0 Supreme(Del) 1501.
Key principles include:- Mandatory Judicial Satisfaction: The court must record its satisfaction based on material on record, such as affidavits showing clear intent Sai Electromech Industries VS Sicagen India Ltd. - 2020 0 Supreme(Mad) 2107Sai Electromech Industries VS Sicagen India Ltd. - 2020 0 Supreme(Mad) 2107.- Strict Compliance Required: Failure to meet these renders the attachment voidSai Electromech Industries VS Sicagen India Ltd. - 2020 0 Supreme(Mad) 2107Krishnappa VS K. N. Sridevi - Current Civil Cases (2012).- Evidence-Based: Vague allegations or suspicion alone won't suffice; prima facie evidence of imminent disposal is essential M/s. Aricent Technologies (holdings) Limited VS M/s. Besto Electronics Pvt. Ltd. - 2018 0 Supreme(P&H) 3917Ganapathiammal VS Kanagalakshmi - 2023 0 Supreme(Mad) 2900.
As held in Raman Tech & Process Engg. Co. v. Solanki Traders (2008) 2 SCC 302, the power must not be exercised mechanically and cannot convert unsecured debts into secured ones Kulmohan Singh And Another VS Satinder Singh Bhasin And Another - 2022 0 Supreme(Del) 1501.
Leave enhancement, typically earned leave encashment payable on retirement, has been challenged in attachments under this rule. Courts have reiterated that such assets cannot be attached mechanically without satisfying Order 38 Rule 5 parameters BEZWADA YOHANU VS KONANGI RADHA KRISHNA - 2018 0 Supreme(AP) 976Sai Electromech Industries VS Sicagen India Ltd. - 2020 0 Supreme(Mad) 2107. In one case, attachment of earned leave encashment was scrutinized, with the court stressing it is not exempt under Section 60 CPC but still demands proof of intent to defeat the decree BEZWADA YOHANU VS KONANGI RADHA KRISHNA - 2018 0 Supreme(AP) 976.
Judicial observations highlight:- Attachments must specifically state the court's satisfaction about intent and imminent disposalKrishnappa VS K. N. Sridevi - Current Civil Cases (2012)BELHOUSE ASSOCIATES PRIVATE LIMITED VS B M L MITTAL - 1996 0 Supreme(Del) 342.- Lack of recorded satisfaction or evidence invalidates orders, leading to set-asides Sai Electromech Industries VS Sicagen India Ltd. - 2020 0 Supreme(Mad) 2107BEZWADA YOHANU VS KONANGI RADHA KRISHNA - 2018 0 Supreme(AP) 976.
In contexts like recovery suits, courts dismiss applications lacking substantial credible material, calling them speculative Jammu and Kashmir Bank Ltd. , Through Drub Raj Sharma VS Golden Globe Impex Private Limited, Through its Managing Director/Director - 2024 Supreme(J&K) 219. For instance, a bank's bid to attach directors' property was rejected for insufficient evidence, referencing Raman Tech and emphasizing stringent interpretationJammu and Kashmir Bank Ltd. , Through Drub Raj Sharma VS Golden Globe Impex Private Limited, Through its Managing Director/Director - 2024 Supreme(J&K) 219.
Courts frequently set aside orders for procedural lapses. If satisfaction isn't recorded, matters are remanded for reconsiderationSai Electromech Industries VS Sicagen India Ltd. - 2020 0 Supreme(Mad) 2107Premchand Jain VS Ganpat Ram Mahajan - 2018 0 Supreme(Raj) 1167. Notable points:- Power not for vague allegations; needs clear evidence and specific reasonsSai Electromech Industries VS Sicagen India Ltd. - 2020 0 Supreme(Mad) 2107BEZWADA YOHANU VS KONANGI RADHA KRISHNA - 2018 0 Supreme(AP) 976.- Exceptional Measure: Used cautiously as a safeguard against decree defeat BEZWADA YOHANU VS KONANGI RADHA KRISHNA - 2018 0 Supreme(AP) 976.
Attachments under Order 38 Rule 5 continue post-decree via Order 38 Rule 10, adjudicable under Order 21 Rule 58 CPC Muralikrishnan VS M. Shanthis - 2023 Supreme(Mad) 3067. In a money suit, claims by third-party purchasers (pre-attachment) were upheld, clarifying maintainability post-decree Muralikrishnan VS M. Shanthis - 2023 Supreme(Mad) 3067. The Court held that a claim is maintainable under Order 38 Rule 10 of C.P.C after the suit is decreed Muralikrishnan VS M. Shanthis - 2023 Supreme(Mad) 3067.
Not all properties qualify. If sold prior to suit filing, attachment fails, as the provision targets imminent disposal, not past transfers Subhash Bhimashankar Kalase VS State Bank of India - 2004 Supreme(Bom) 1121. The provision would apply where the defendant is about to dispose whole or part of the property and not where the property has already been disposed of much before the filing of the suit Subhash Bhimashankar Kalase VS State Bank of India - 2004 Supreme(Bom) 1121. Purchasers in possession can object, especially if not parties to the suit Subhash Bhimashankar Kalase VS State Bank of India - 2004 Supreme(Bom) 1121.
In another instance, attachment petitions citing Raman Tech were denied for lacking grounds under Order 38 Rule 5 N.Venkata Swamy vs B.Sulochana Devi - 2025 Supreme(Online)(Tel) 72273.
Courts exercise caution:- Not Lightly Invoked: Based on material evidence, not suspicion Premchand Jain VS Ganpat Ram Mahajan - 2018 0 Supreme(Raj) 1167.- Interim Safeguards: In execution, undertakings must comply strictly; non-compliance leads to consequences Pradeep Kumar Puri VS Ranjeet Kour - 2017 Supreme(J&K) 12.- Special Contexts: Section 22 of the Sick Industrial Companies Act suspends executions without BIFR consent D. K. Chemicals Ltd. VS M/s Rana Mahendra Papers Ltd. And Others - 2009 Supreme(P&H) 349.
For injunctions or revisions, changed circumstances don't lightly override intact orders Remisiama VS Ainghinglova - 2008 Supreme(Gau) 36.
Attachment of leave enhancement under Order 38 Rule 5 CPC may be permissible if courts record satisfaction based on concrete evidence of obstructive intent, but precedents like Raman Tech warn against routine use Kulmohan Singh And Another VS Satinder Singh Bhasin And Another - 2022 0 Supreme(Del) 1501. Orders lacking procedural rigor are typically set aside Sai Electromech Industries VS Sicagen India Ltd. - 2020 0 Supreme(Mad) 2107. This power protects genuine claims as a last resort, balancing plaintiff security with defendant rights.
Sources Cited: BEZWADA YOHANU VS KONANGI RADHA KRISHNA - 2018 0 Supreme(AP) 976Sai Electromech Industries VS Sicagen India Ltd. - 2020 0 Supreme(Mad) 2107Harvinder Singh VS Avtar Singh - 2010 0 Supreme(P&H) 443Premchand Jain VS Ganpat Ram Mahajan - 2018 0 Supreme(Raj) 1167Kulmohan Singh And Another VS Satinder Singh Bhasin And Another - 2022 0 Supreme(Del) 1501Ganapathiammal VS Kanagalakshmi - 2023 0 Supreme(Mad) 2900Krishnappa VS K. N. Sridevi - Current Civil Cases (2012)BELHOUSE ASSOCIATES PRIVATE LIMITED VS B M L MITTAL - 1996 0 Supreme(Del) 342M/s. Aricent Technologies (holdings) Limited VS M/s. Besto Electronics Pvt. Ltd. - 2018 0 Supreme(P&H) 3917Muralikrishnan VS M. Shanthis - 2023 Supreme(Mad) 3067N.Venkata Swamy vs B.Sulochana Devi - 2025 Supreme(Online)(Tel) 72273Jammu and Kashmir Bank Ltd. , Through Drub Raj Sharma VS Golden Globe Impex Private Limited, Through its Managing Director/Director - 2024 Supreme(J&K) 219Pradeep Kumar Puri VS Ranjeet Kour - 2017 Supreme(J&K) 12D. K. Chemicals Ltd. VS M/s Rana Mahendra Papers Ltd. And Others - 2009 Supreme(P&H) 349Remisiama VS Ainghinglova - 2008 Supreme(Gau) 36Subhash Bhimashankar Kalase VS State Bank of India - 2004 Supreme(Bom) 1121
This analysis draws from established case law as of October 2023. Legal outcomes depend on facts; seek professional advice.
#Order38Rule5, #CPCAttachment, #LeaveEncashment
either in the plaint or in the application filed under Order 38 Rule 5 ofof the Code of Civil Procedure attachment 38 Rule 5to costs. ... During pendency of the suit since the plaintiff got suspicious that, the defendant could leave the country and tospan style="font-size:14pt
(A) Code of Civil Procedure, 1908 - Order 38 Rule 5 - Attachment before judgment - The plaintiff sought attachment of the defendant's ... 38 Rule 5 and whether the plaintiff's application for attachment was justified. ... loan agreement for school development - The Sub Court allowed the attachment without complying with the mandatory requirements of Order ... An order of attachment made without complying with the stipulations in Order 38 Rule #HL_STA....
, 38, R.5 sub-rule (1). ... The order dated 20th May 2009 is thus not in conformity with O.38, R.5 sub-rule (1). ... It is against said back drop that the O.38, R.5 lays down important conditions to be adhered to, by the Trial Court before making an order of attachment before the judgment and O.38, R.5 Sub-rule (4) declares an order made in vio....
The court concluded that the appeal was not maintainable as the order under Order 38 Rule 5 CPC is not listed as appealable under ... It also examined Order 38 Rule 5 of the CPC, which governs attachment before judgment, emphasizing that the plaintiff must demonstrate ... Ratio Decidendi: The court held that an appeal against an order under Order 38 Rule 5 CPC is not maintainable ... The Courts, while exercising its jurisdiction under Order 38 #HL....
(A) Constitution of India - Article 227 - Code of Civil Procedure, 1908 - Order 38 Rule 5 - Attachment before judgment - Contest ... ... ... Ratio Decidendi: The court determined that the attachment of property under Order 38 Rule 5 is only applicable against defendants ... 38 Rule 5. ... the revision petitioner is that as per Order 38 Rule 5 a notice to show cause has to be issued prior to order of any attachmen....
Attachment before Judgment - Money Suit - Order 38 Rule 10 of C.P.C - Order 38 Rule 11 of C.P.C - Order ... The trial Court relied on Order 38 Rule 10 of C.P.C to raise the order of attachment, leading to the filing of revision petitions ... Finding of the Court: The Court held that a claim is maintainable under Order 38 Rule ... As per Order 38 Rule 5 of C.P.C, an ord....
The appeal arises from an order under Order 38 Rule 5 of the CPC, concerning attachment of assets pending a monetary claim. ... He contended that an appeal under Order 43 Rule 1 of the CPC would not lie against an order passed under Order 38 Rule 5 of the CPC. ... He submitted that it is well within the authority of the Trial Court to pass appropriate orders under Order 38 Rule #....
the revision petitioner is that as per Order 38 Rule 5 a notice to show cause has to be issued prior to order of any attachment. ... During the pendency of the suit, an application was also filed by the respondent under Order 38 Rule 5 of the CPC seeking attachment of the said properties. ... Coming to the aspect of the present application, admittedly as on the date, when the application under Order 38#....
under Order 38 Rule 5 to be ordered. ... By referring to Order 38 Rule 5, on considering the contentions in term of the judgment of the Hon’ble Apex Court in Raman Tech and Process Engg. Co. & Anr v. ... A petition under Order 38 Rule 5 is made seeking attachment of house bearing No.44-127 (an extent of 125 sq. yards) situated at Ramnagar, Wanaparthy Town, on the ground that the ....
Attachment before Judgment - Recovery Suit - Order 38 Rule 5 - [Section 136, Order 38 Rule 5, Section 151 ... of the Code of Civil Procedure] - The court discussed the provisions of Order 38 Rule 5 and its primary objective to prevent the ... “Order 38 Rule 5. ... 2) allows the plaintiff to specify the property required to be attached and Sub rule (3) permits the Court to #HL_ST....
Cybernetics School, it's building and land which was attached before judgement under Order 38 Rule 5 CPC. 7. That it also the plea of the petitioner that although the decree was passed on merit on the failure of respondent No. 1 and her husband to file the undertaking in terms of the order of the High Court dated 16.03.2012, yet respondent No. 1 and her husband filed an application for setting aside of the decree on the plea that the same was ex parte and that the petitioner had filed an execution petition for sale of the property i.e.
In the execution, respondent No. 1-JD filed objections which were dismissed on 2.6.2005. The property in question was attached under Order 38 Rule 5 CPC. The objections filed second time were also dismissed on 31.1.2006.
If the grounds under Order 38, Rule 5 are made out then any property could also be attached under Order 38, Rule 5. But at the same time any order passed by Single Judge which remains intact, cannot be lightly interfered with simply because a party is trying to use the term "changed circumstances" which have not changed: HIH Ltd. v. Jyoti Pvt. Ltd.(1998) 72 Del. L.T. 696. It may be suit property, it may be a property which might form part of the security for any subsequent performance of a certain contract or a security for repayment of a loan or a property on which a charg....
Since the property had already been transferred in favour of the appellant much prior to filing of suits in question, the provisions of Order 38, Rule 5 of the C.P.C. could not have been invoked. Shri Godbole, learned Counsel appearing for the appellant in all these appeals urged that the impugned orders suffer from an error apparent on the face of the record since learned Judge did not consider the provisions of Order 38, Rule 5 of the C.P.C. in its proper perspective. In his submission, trial Court ought to have seen that under Order 38, Rule 5 of C.P.C., property owned by the pa....
Therefore, we hold that in exercise of the power, under Order 38, Rule 5 CPC, the Court can attach the debts due to the defendant from a third party. In that view of the matter, we hold that the opinion of the learned single Judge in J. Balakrishna s case (supra) is not good law and it is accordingly overruled. The attachment of debts due to the defendant from third party could be attached before judgment under Order 38, Rule 5 CPC.
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